Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Monday, June 30, 2014

The New York State Legislature has passed crucial legislation that serves to assist homeowners facing foreclosure....mandatory foreclosure settlement conferences, set to expire in early 2015, have been extended for five more years.

For a scorecard on how the legislature did with that and other consumer oriented bills, see this link:

Friday, June 27, 2014

In the past few days, the press has been reporting on the fact that The American Bar Association says it's ethical for lawyers to scour online for publicly available musings of citizens called for jury service — and even jurors in deliberations.

This was actually from an opinion issued in April 2014 and here is a link to the full opinion:

Thursday, June 26, 2014

"Long Island homeowners in distress will soon be eligible to apply for a new low-cost loan program meant to help avert foreclosure.

Homeowners will be able to obtain loans this fall of up to $40,000 to pay down delinquent home loans or satisfy liens, which can interfere with troubled homeowners' ability to have their mortgages modified by lenders, New York Attorney General Eric T. Schneiderman said Wednesday.

For many families, "receiving a small loan through this program will mean the difference between a mortgage modification and the loss of a home," Schneiderman said in a statement. He is expected to officially announce the initiative, called the New York State Mortgage Assistance Program, Thursday in Hempstead. Recipients must earn less than 120 percent of their area's median income."

I could not find the press release on the AG web site but here is the link to the New York State Mortgage Assistance Program website:

Monday, June 23, 2014

"On March 31, 2014, Governor Andrew Cuomo signed legislation that changed the New
York estate tax law. As of April 1, 2014 the estate tax exemption amount
increased from $1,000,000 to $2,062,500 for persons dying on or after April 1,
2014.

The revised New York estate tax exemption schedule is as
follows:

For individuals dying on or after April 1, 2014 and
before April 1, 2015, the exemption amount will be $2,062,500.

For individuals dying on or after April 1, 2015 and before April 1, 2016, the
exemption amount will be $3,125,000.

For individuals dying on or
after April 1, 2016 and before April 1, 2017, the exemption amount will be
$4,187,500.

For individuals dying on or after April 1, 2017 and
before January 1, 2019, the exemption amount will be $5,250,000.

For
decedents who die on or after January 1, 2019, the basic exemption amount will
be subject to a cost of living adjustment. It is expected that by 2019 the New
York estate tax exemption will be equal to the Federal estate tax
exemption."

Friday, June 20, 2014

As a follow up on yesterday's blog post, one recent approach used by a court in a landlord/tenant action in which landlord claimed a nuisance by virtue of the domestic violence disputes between tenant and her boyfriend can be found in:

"Applying these legal principles to the matter at bar, Tenant has demonstrated that the Petition contains fundamental misstatements and omissions as to the regulatory status of the subject Premises. Other than stating that the Premises are subject to the "Rent Stabilization Law," the Petition fails to mention any of the other Federal, State and local regulatory schemes governing the same, which according to the Automated City Register Information System of the NYC Department of Finance (ACRIS) and the Lease, include the CFR rules and regulations governing the Shelter+Care Program of which Tenant belongs (see 24 CFR 582.300), as well as two additional regulatory agreements and related amendments with New York City, and the Low Income Housing Credit regulations. Landlord's failure to particularly allege the existence of these contracts, rules and regulations appears fatal to this proceeding because neither Tenant nor the Court were put on notice of the laws governing the tenancy or the substantive rights involved (see City of New York v Valera, 216 AD2d 237, 237-238 [1995]). The CFR and City contracts provided Tenant with certain potential defenses, and "Civil Court could not have properly adjudicated this proceeding without that contract" (id.; see Villas of Forest Hills v Lumberger, 128 AD2d 701, 702 [1987]; see also MSG Pomp Corp. v Doe, 185 AD2d at 799-800). Similar to the reasons given for the dismissal of the Petition in Matter of Volunteers of Am.-Greater NY, Inc. v Almonte (65 AD3d at 1155), the instant Premises are also part of a federally subsidized program and subject to governmental contracts which Landlord neglected to specify.

Not only is the Premises' regulatory status required, but Landlord must also show its compliance with the applicable rent laws and regulations over the tenancy. As evidenced by the contracts between the City and Landlord, the City is sufficiently "entwined" with the subject Premises so as to constitute significant and meaningful governmental participation, triggering constitutional Procedural Due Process guarantees (see Matter of Fuller v Urstadt, 28 NY2d 315, 318-319 [1971]; 512 E. 11th St. HDFC v Grimmet, 181 AD2d 488, 489 [1992],appeal dismissed 80 NY2d 892 [1992]). Specifically, CFR provides that tenants participating on the Shelter+Care Program should be "terminated only in the most severe cases," and only after a certain "formal process" complying with Due Process of Law (24 CFR 582.320[a, b]), given the last resort nature of this shelter program. This process must consist, at a minimum, of: (1) written notice to the tenant of the reasons for termination; (2) an independent review of the decision, wherein the tenant is given an opportunity to present written or oral objections, by a person other than the one who made the initial termination decision; and (3) a prompt written notice of the final decision (24 CFR 582.320[b][1-2]; see 512 E. 11th St. HDFC v Grimmet, 181 AD2d at 489). The Petition here does not allege that Landlord followed these CFR procedures prior to commencing the instant proceeding. Instead, Tenant's tenancy was undisputedly terminated via the January 2013 Notice of Termination without any additional Due Process. "Because equity abhors forfeitures of valuable leasehold interests, courts have required strict compliance with the termination provision of leases" (Jacobson v Raff, 30 Misc 3d 143[A], 2011 NY Slip Op 50323[U] [AT 2nd Dept 2011], quoting Metropolitan Transp. Auth. v Cosmopolitan Aviation Corp., 99 AD2d 767, 768 [1984]). Landlord is, therefore, in unambiguous breach of its agreements, rendering the Petition defective, and dismissal warranted for this reason as well."

Thursday, June 19, 2014

"You can help make sure that domestic violence victims and victims of crime are not forced to choose between seeking desperately needed police assistance or losing their housing.

How? By taking one minute to send a message to the New York State Senate in support of one of our top priority domestic violence bills (S.6924).

How will this bill help victims of domestic violence and other crimes? The bill will address the growth of “nuisance ordinances” across New York State and its negative effect the can have. Many times, municipalities pass ordinances that will designate a property as a “nuisance” in the event of excessive calls for police assistance or alleged criminal activity. While the laws may be well-intentioned, they tend to be overbroad and have an extremely detrimental impact on domestic violence and crime victims, as landlords and property owners are pressured to “abate the nuisance” or face stiff penalties. Consequently, victims are fearful they will face eviction, if they call the police for protection from their abuser.

Why does this matter? Domestic violence victims in particular must make the difficult choice between seeking protection from their abuser or maintaining adequate housing for their families. This bill will aid municipalities, by ensuring that the enforcement of local laws does not inadvertently penalize crime victims or run afoul of existing constitutional, federal and state protections. It will also help them promote quiet enjoyment in their communities and address any criminal activity and/or independent lease violations."

Tuesday, June 17, 2014

Although it was recently reported that certain banks or servicers required clause in their modification agreements that disallowed some homeowners from criticizing the company publicly in exchange for having their loan terms modified, at least one of them has retracted from this stance.

Monday, June 16, 2014

The Plaintiff was diagnosed with multiple sclerosis, uses a wheelchair and has limited use of her arms and hands. Her service dog was needed to pick things, up, open and close doors and retrieve items from counter tops. The condominium board argued that even if Plaintiff needed a service dog, she could have gotten by with an animal that did not weigh more than the condo's 20-Pound limit.

A Fair Housing Act claim was eventually asserted and the court held that such a dog would not have been able to meet Fishcer’s needs and that the large dog was a “reasonable accommodation” to the condo's requirements. In addition, the court noted that the condo association “turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society,” and “it does a disservice to people like (Plaintiff) who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA.” But note the court also stated that "[t]here is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support."

Wednesday, June 11, 2014

"Trolls, Flame Throwers and Haters are all over the internet. As an attorney, you
have a reputation you want to protect from people writing horrible things about
you or even outright lies. How do you create and manage your brand from being
destroyed by individuals who have negative things to say?"

Important not just for one's own practice, but to counsel clients who also experience this.

Tuesday, June 10, 2014

"A New York lawyer may use the street address of a virtual law office ("VLO")
located in New York state as the "principal law office address" for the purposes
of Rule 7.1(h) of the New York Rules of Professional Conduct (the "New York
Rules" or the "Rules"), even if most of the lawyer's work is done at another
location. In addition, a New York lawyer may use the address of a VLO as the
office address on business cards, letterhead and law firm website. Given the
lower overhead, improved encryption systems, expansion of mobile communication
options, availability of electronic research, and the ease of storing and
transmitting digital documents and information, VLOs are becoming an
increasingly attractive option for attorneys throughout the country. A New York
lawyer who uses a VLO must also comply with other New York Rules, including
Rules 1.4, 1.6, 5.1, 5.3, 8.4(a) and 8.4(c).

A New York lawyer may need to consider additional issues, such as whether the
contemplated arrangement complies with relevant substantive laws and court
rules, and the professional conduct rules of other jurisdictions. These
additional issues fall outside the jurisdiction of the Committee on Professional
Ethics (the "Committee"), which is limited to interpreting the New York Rules.[1]"

Monday, June 9, 2014

The New York Non-Profit Revitalization Act of 2013 is scheduled to take effect July 1. An excellent discussion of the act can be found at this link and there are many others that can be found on the web:

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/